>>> WELCOME BACK. WE HAVE BEEN FOLLOWING SEVERAL
DEVELOPING LEGAL STORIES
INVOLVING THE WHITE HOUSE THIS
EVENING, INCLUDING NOW ONE
CONCERNING A NEW ONE.
MICHAEL COHEN.
MICHAEL COHEN. YES, THERE IS ANOTHER ONE.
AS FIRST REPORTED BY THE "WALL
STREET JOURNAL," AN ATTORNEY FOR
THE FORMER FIXER DISCUSS THE
POSSIBILITY OF A PARDON WITH ONE
OF THE PRESIDENT’S ATTORNEYS
LAST YEAR AFTER FEDERAL AGENTS
RAIDED COHEN’S HOME AND OFFICE.
WE LEARNED THERE WAS MORE THAN
ONE CONVERSATION ABOUT A PARDON
AND CONGRESS IS LOOKING INTO
WHETHER OR NOT THE US USED A
PARDON TO COAX COHEN TO CONTINUE
LYING ABOUT THE PAYMENTS.
MEANWHILE THE HOUSE CHAIRMAN IS
ACCUSING THE WHITE HOUSE ABOUT
LYING BY REFUSING TO HAND OVER
DOCUMENTS INTO THE SECURITY
CLEARANCES INCLUDING JARED
KUSHNER.
KUSHNER. THEY CALLED THE DEMANDS
UNPRECEDENTED AND INTRUSIVE.
WE NEVER HAD A SITUATION LIKE
THIS WITH A SECURITY CLEARANCE
BEFORE.
BEFORE. THEY ALSO CLAIM HE IS OVER-10
STEPPING HIS AUTHORITY ON HIS
COMMITTEE.
COMMITTEE. A SENIOR FBI OFFICIAL IS NOW AN
MSNBC CONTRIBUTOR.
MSNBC CONTRIBUTOR. MR. ROSEN BERG, I WILL START
WITH THE PARDON STORY.
HERE’S WHERE I’M TRYING TO
FIGURE OUT THE LEGAL ISSUE HERE.
PURE LEGAL ISSUE.
IF THE PRESIDENT HAS THIS POWER
TO PARDON, ULTIMATELY WHETHER HE
BROKE THE LAW OR NOT IS NOT UP
TO THE JUSTICE DEPARTMENT, IT’S
UP TO CONGRESS.
IS THERE A LEGAL INVESTIGATION
TO BE DONE THAT’S DIFFERENT FROM
CONGRESS’S INVESTIGATION INTO
THE IDEA OF DANGLING A PARDON?
>> I THINK THERE IS, CHUCK.
IT’S A HARD LEGAL QUESTION, BUT
HERE’S HOW I THINK IT WOULD PLAY
OUT.
OUT. THE CONSTITUTION GIVES THE
PRESIDENT EXTRAORDINARILY BROAD
PARDON POWERS.
PARDON POWERS. THERE IS ONLY ONE LIMITATION
WHICH IS IN CASES OF
IMPEACHMENT.
IMPEACHMENT. LET’S SAY A PRESIDENT SOLD A
PARDON.
PARDON. CHUCK TODD IS IN TROUBLE AND
COUGHS UP $5 MILLION WE HAD A GO
TENNESSEE THAT SOLD PARDONS AS
HE WAS WALKING OUT THE DOOR.
THAT WAS NOT THEORETICAL.
>> FOR WOULD HAVE BEEN UNDER THE
CONSTITUTION.
CONSTITUTION. NOT UNDER THE U.S. CONSTITUTION.
SAY YOU, CHUCK TODD COUGH UP $5
MILLION IN RETURN FOR A PARDON
OR SAY IN RETURN FOR YOUR
PARDON, YOU AGREE TO LIE TO THE
FBI OR WITHHOLD EVIDENCE OR
REMAIN SILENT.
REMAIN SILENT. EVEN THOUGH THE CONSTITUTION
SAYS THE PRESIDENT’S PARDON
AUTHORITY IS BROAD, I DON’T
THINK CONSTRUCTION WOULD SAY
IT’S BROAD ENOUGH TO COVER
CRIMES.
CRIMES. YOU WOULD HAVE TO LITIGATE IT,
BUT I THINK THAT COULD BE
CONSTRUED AND I’M CONFIDENT THAT
COULD BE CONSTRUED AS
OBSTRUCTION OF JUSTICE, IF IT
HAPPENED.
HAPPENED. >> WE HAD THE MARK RICH PARDON
AND IT NEVER GOT -- IF YOU
RECALL, THIS WAS SOMEBODY WHO
BILL CLINTON PARDONENED TOWARDS
THE END OF HIS PRESIDENCY.
THE ACCUSATION WAS HIS WIFE, HE
WAS NOT IN THE UNITED STATES,
BUT HIS WIFE BOUGHT THE PARDON
AND STARTED TO CONTRIBUTING A
LOT OF MONEY AND GOT MEETINGS
AND THAT STUFF.
WHERE IS THAT ILLEGAL?
>> AGAIN, TOUGH QUESTION.
I’M NOT WHOLLY FAMILIAR EXCEPT
TO KNOW IT HAPPENED OUT THE DOOR
UNDER STRANGE CIRCUMSTANCES.
IT LOOKED TAWDRY TO SAY THE
LEAST.
LEAST. AGAIN, I THINK YOU CAN MAKE AN
ARGUMENT THAT IF YOU SELL A
PARDON, THAT IS NOT IN ANY WAY
WHAT OUR FOUNDERS ENVISIONED.
>> IS THAT AN INDICTMENT OR A
GRAND JURY OR CHALLENGE THE
JUSTICE DEPARTMENT’S AUTHORITY
ABOUT WHETHER THEY CAN INDICT A
SITTING PRESIDENT?
SITTING PRESIDENT? >> IT CAN BE A NON-SITTING
PRESIDENT.
PRESIDENT. EVERY PRESIDENT BECOMES A FORMER
PRESIDENT AT SOME POINT.
IF THE PRESIDENT DID THAT AND
YOU COULD PROVE IT BEYOND A
REASONABLE DOUBT, YOU COULD WAIT
UNTIL A PRESIDENT IS NO LONGER
PRESIDENT AND BRING THAT CHARGE
CRIMINALLY.
CRIMINALLY. >> LET ME GO TO THE JARED
KUSHNER SITUATION.
KUSHNER SITUATION. IT SEEMS AS IF, AND THE BACK AND
FORTHS ON EXECUTIVE PRIVILEGE
ARE GOING TO BE TREMENDOUS.
OBVIOUSLY SOME OF IT IS A
POLITICAL STRATEGY BY THE WHITE
HOUSE TO DELAY, DELAY, DELAY AND
I UNDERSTAND THAT.
WHAT DO YOU THINK WILL BE THE
DIFFICULT CASE TO GET THE
INFORMATION THEY NEED ON JARED
KUSHNER?
KUSHNER? >> IT MAY BE A DIFFICULT CASE.
THERE IS A LEGITIMATE THING
CALLED EXECUTIVE PRIVILEGE.
IN 1974 WHEN THE SUPREME COURT
RULED THAT NIXON HAD TO TURN
OVER HIS TAPES WHICH LED TO HIS
DOWNFALL, OF COURSE.
IN THAT SAME OPINION, THERE IS A
QUALIFIED EXECUTIVE PRIVILEGE.
IT’S HARD FOR US SITTING HERE
TODAY TO KNOWA WHAT THE CONGRESS
WANTS AND OVER WHAT THE WHITE
HOUSE IS ASSERTING EXECUTIVE
PRIVILEGE.
PRIVILEGE. THAT’S GOING TO PROBABLY BE
LITIGATED UNLESS THEY CAN REACH
ACCOMMODATION AND RIGHT NOW THE
TWO SIDES SEEM RELATIVELY FAR
APART.
APART. >> THAT ARE HAS TO DO WITH THE
JUDICIARY REQUEST FROM THE
COMMITTEE THERE.
COMMITTEE THERE. THAT GOES TO SECURING THE
MUELLER EVIDENCE.
MUELLER EVIDENCE. I LOOKED AT WHAT THEY DID AND IT
SEEMED TO ME THE PRIORITY ONE
WAS SECURING THE EVIDENCE
MUELLER HAD.
MUELLER HAD. I GUESS MY QUESTION IS, WHERE
DOES THAT EVIDENCE GO AND WHY
CAN’T IT BE TURNED -- IS THAT UP
TO THE DEPARTMENT OF JUSTICE
SOLELY?
SOLELY? TO TURN THAT EVIDENCE OVER TO
CONGRESS IF THEY ASK FOR IT?
>> I WILL TAKE THE FIRST PART
FIRST.
FIRST. SOME OF THAT EVIDENCE THAT
MUELLER AMASSES IS GOING TO BE
EITHER PROTECTED BY RULE 60 OF
THE RULES OF CRIMINAL PROCEDURE,
LAWYER WAY OF SAYING GRAND JURY
INFORMATION WHICH YOU CAN’T JUST
TURN OVER TO ANYONE ELSE.
OR IT COULD BE CLASSIFIED OR
THERE COULD BE ONGOING
INVESTIGATIONS.
INVESTIGATIONS. IT’S NOT CLEAR TO ME THAT
EVERYTHING IN MUELLER’S REPORT
CAN EASILY GO TO THE CONGRESS OR
BE MADE PUBLIC.
THAT’S SOMETHING THAT BARR IS
GOING TO HAVE TO DECIDE.
TO YOUR LARGER POINT, IT SEEMS
LIKE THE CONGRESS HAS AT LEAST A
COUPLE OF REASONS TO GET AS MUCH
STUFF AS IT CAN.
ONE IS FOR ITS OWN OVERSIGHT
RESPONSIBILITIES.
RESPONSIBILITIES. ITS OWN INVESTIGATIONS.
THE OTHER IS PERHAPS AS YOU
SURMISE TO MAKE SURE AS MUCH OF
THIS STUFF DOESN’T JUST
DISAPPEAR IF THE MUELLER REPORT
CAN’T BE MADE IN WHOLE OR IN
PART.
PART. >> WHEN DOES EVIDENCE GET
DESTROYED?
DESTROYED? HOW DOES THAT WORK?
>> IN A ROUTINE CASE, WE KEEP IT
FOR YEARS AND YEARS IN THE U.S.
ATTORNEY’S OFFICE UNTIL ALL
APPEALS ARE EXHAUSTED AND THE
SUPREME COURT DENIES AND THEN
PROBABLY ANOTHER DECADE.
WE HOLD ON TO STUFF FOR A LONG
TIME AS PROSECUTORS UNTIL WE ARE
POSITIVE NOBODY NEEDS IT
ANYMORE.
ANYMORE. >> THAT’S WHAT I WAS COUNTING